University of Miami Law Review Volume 73 Number 1 Fall 2018 Article 10 10-30-2018 The Bring Your Own Tampon Policy: Why Menstrual Hygiene Products Should Be Provided for Free in Restrooms Elizabeth Montano Follow this and additional works at: https://repository.law.miami.edu/umlr Part of the Human Rights Law Commons Recommended Citation Elizabeth Montano, The Bring Your Own Tampon Policy: Why Menstrual Hygiene Products Should Be Provided for Free in Restrooms, 73 U. Miami L. Rev. 370 (2018) Available at: https://repository.law.miami.edu/umlr/vol73/iss1/10 This Note is brought to you for free and open access by the Journals at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in University of Miami Law Review by an authorized editor of University of Miami School of Law Institutional Repository. For more information, please contact [email protected]. The Bring Your Own Tampon Policy: Why Menstrual Hygiene Products Should Be Provided for Free in Restrooms ELIZABETH MONTANO* Like toilet paper, menstrual hygiene products,1 such as tampons and pads, are necessities for managing natural and unavoidable bodily functions. However, menstrual hygiene products widely receive separate treatment in restrooms across the globe. While it would be absurd today to carry a roll of toilet paper at all times, it is considered necessary and common sense for all menstruators to carry menstrual hy- giene products at all times, for approximately forty years, in case of an emergency. This is the “Bring Your Own * Editor-in-Chief, University of Miami Law Review, Volume 73; J.D. Candi- date 2019, University of Miami School of Law; B.A. 2014, University of Central Florida. This Note could not have been written without the help of some amazing women: Professor Shara Pelz, Melissa Scott, Brianna Sainte, and Keelin Bielski. Thank you. I would also like to thank the women I am privileged to have as role models: My sister, Georgia Montano, who is my biggest protector and my fellow lover of bathroom humor; and my mother, Lisa Montano, whose courage, support, love, and friendship makes her, perhaps, the best woman ever been put on this Earth. Thank you. I would also like to thank the wonderful and incomparable Ex- ecutive Editors of the University of Miami Law Review, Volume 73: Keelin Biel- ski, Megan Cheney, and Maya Frucht. All of the articles in this first Issue have been blessed by your skill, dedication, and passion. I am so lucky to get to work with and learn from the three of you. Thank you for everything. 1 In an effort to be more inclusive and cognizant of the fact that not all indi- viduals who menstruate identify as “female,” I will use, where possible and accu- rate, gender neutral terms, such as “menstruators” and “menstrual hygiene,” rather than “women” and “feminine hygiene.” Furthermore, by referring to these prod- ucts as exactly what they are, products to manage menstruation, instead of using euphemisms such as “feminine hygiene products” and that “time of the month,” I am seeking to encourage others to move past the “shame, embarrassment, [and] awkwardness” that people feel when discussing menstruation. Claire Coder, Ditching Feminine Hygiene Products, AUNT FLOW (Dec. 20, 2016), https://www.aunt flow.org/blogs/news/ditching-feminine-hygiene-products. 370 2018] THE BRING YOUR OWN TAMPON POLICY 371 Tampon” (“BYOT”) policy and it is a violation of human rights and equal protection. This Note seeks to answer four questions: (1) what is the history and impact of the BYOT policy?; (2) what progress has been made in ending the BYOT policy?; (3) what are the risks and benefits of ending the BYOT policy?; and (4) why are menstrual hygiene products, unlike toilets and toilet pa- per, considered luxuries instead of necessities? In address- ing these questions, this Note analyzes two movements in the United States and their implications on human rights and equal protection: (1) the movement to end pay toilets and (2) the movement to end the BYOT policy. Based on this analy- sis, this Note posits that the BYOT policy is a violation of human rights and equal protection and needs to be flushed out across the globe. INTRODUCTION .........................................................................372 I. THE HISTORY: A BRIEF LOOK INTO THE ORIGINS OF PAY TOILETS AND THE BYOT POLICY ........................................374 A. The Rise of Pay Toilets ...............................................374 B. The Rise of the BYOT Policy .......................................376 II. THE END: PAY TOILETS AS VIOLATIONS OF HUMAN RIGHTS AND EQUAL PROTECTION ....................................................379 A. Pay Toilets Violated Human Rights and Equal Protection ...................................................................379 B. The Movement to Eliminate Pay Toilets in the United States Succeeds ...........................................................383 III. THE BLOODY TRUTH: THE BYOT POLICY VIOLATES HUMAN RIGHTS AND EQUAL PROTECTION ...........................384 A. Human Rights to Education and Work ........................385 B. Human Rights to Health and Sanitation ......................387 C. Human Right to Equality and Equal Protection...........390 IV. THE PROGRESS: THE GRADUAL ELIMINATION OF THE BYOT POLICY ....................................................................392 A. The Movement to Eliminate the BYOT Policy in the United States...............................................................393 B. The Movement to Eliminate the BYOT Policy Outside the United States .........................................................398 V. THE DOWNSIDE: WEIGHING THE COSTS AND BENEFITS ........400 VI. THE SOLUTION: SOLVING THE MYSTERY BEHIND THE 372 UNIVERSITY OF MIAMI LAW REVIEW [Vol. 73:370 BYOT POLICY ....................................................................404 A. Menstruators Are Historically Underrepresented in Legislatures ............................................................405 B. Menstruation Is Plagued With Debilitating Stigma......407 CONCLUSION ............................................................................410 INTRODUCTION Imagine this: you are finally on your way home after a long day at work, school, or running errands. As you are sitting in traffic, Mother Nature calls and she is not hanging up. You pull over at the nearest rest stop to answer her call but find that you must pay be- tween $0.74 and $1.842 to do so. To your horror, you do not have any spare change. You start panicking, frantically searching for an- yone who not only has the spare change, but who is also willing to give it to you. Just as you were about to resort to using the old news- paper from the stand outside, you finally find a knight in porcelain armor to give you the exact change you need. Though you are re- lieved, the stress and fear you felt cannot be eliminated. While this seems like an exaggeration, “pay toilets” were stand- ard devices in the United States throughout most of the twentieth century.3 A “pay toilet” is a public toilet that requires payment to unlock the door and use the facility.4 During their heyday, pay toi- lets constituted a $30 million-a-year industry.5 The supporters of pay toilets argued that the “entrance fees” would contribute to the costs of cleaning and supplying the bathrooms.6 However, many op- position groups argued that pay toilets violated, among other things, 2 As of May 2018, this is the equivalent of between $0.10 and $0.25 in Jan- uary 1968 after inflation. CPI Inflation Calculator, BUREAU OF LAB. STAT., https://www.bls.gov/data/inflation_calculator.htm (last visited June 24, 2018). This was the average price of using the pay toilet in 1968. See infra Section I.A. 3 Eddie Deezen, Many Public Toilets Used to Be Pay As You Go, TODAY I FOUND OUT: FEED YOUR BRAIN (Aug. 23, 2012, 8:00 AM), http://www.to- dayifoundout.com/index.php/2012/08/many-public-toilets-used-to-be-pay-as- you-use/. 4 Aaron Gordon, Why Don’t We Have Pay Toilets In America?, PAC. STAND- ARD (Sept. 17, 2014), https://psmag.com/economics/dont-pay-toilets-america- bathroom-restroom-free-market-90683. 5 Group Seeks to End Pay Toilets: And It Has Had Some Success Already, SARASOTA J., Jul. 25, 1973, § B, at 8 [hereinafter Group Seeks to End]. 6 Id. 2018] THE BRING YOUR OWN TAMPON POLICY 373 basic human rights and equal protection.7 As a result, pay toilets were essentially outlawed across the United States by 1980.8 In comparison, eighty-six percent (86%) of menstruators will unexpectedly start their period while in public without the necessary menstrual hygiene products.9 Because menstrual hygiene products are not provided in restrooms, these individuals must frantically search for someone who not only has the products, but who is also willing to share the products. If they fail in this search, or are too humiliated to even try, these individuals must resort to unsanitary and dangerous alternative methods.10 In other words, the hypothet- ical described above is not uncommon; in fact, for approximately 100 million people,11 it is a consequence of the “Bring Your Own Tampon” (“BYOT”) policy that is a reality across the globe.12 The BYOT policy begs the following question: when pay toilets were outlawed in the United States, why were products such as toilet paper and soap made free while menstrual hygiene products were not? Like toilets and toilet paper, menstrual hygiene products are necessary to effectively and sanitarily manage natural and unavoid- able bodily functions.13 If pay toilets were found to be “discrimina- tory tax[es] on human biological functions[,]”14 why were menstrual hygiene products forgotten? Part I of this Note sets the stage with a brief discussion of the historical background of pay toilets and the BYOT policy. Part II 7 See Gordon, supra note 4. 8 See id. 9 FREE THE TAMPONS FOUND., THE MURPHY’S LAW OF MENSTRUATION (Harris Interactive, 2013), http://www.freethetampons.org/uploads/4/6/0/3/ 46036337/ftt_infographic.pdf [hereinafter MURPHY’S LAW]. 10 See id. 11 Carrie Ghose, Free the Tampons Campaign Backed by Digital Marketing Guru Nancy Kramer, FREE TAMPONS (Oct.